Two years after the horrific Army Public School tragedy and the adoption of the much-celebrated “National Action Plan” against terrorism (NAP), it is important to once again reassess the legitimacy and efficacy of NAP and take stock of its successes and failures. This includes at the forefront the government’s controversial move to bring back the death penalty and establish military courts to try civilians for terrorism-related offences.
The government had lifted a six-year moratorium on the death penalty in December 2014, even before NAP was officially adopted. As the rest of the world is rapidly moving towards abolition of the death penalty, with at least 150 states now abolitionist in law or practice, Pakistan has fast surpassed nearly all other countries and is now the third highest executioner globally only after China and Iran.
Contrary to popular perception, more than 85 per cent of the 426 executions carried out in the last two years relate to ordinary crime, not “terrorism”.
According to government officials, executions were brought back on the pretext that only the death penalty could deter people from committing serious crime. One judge of the Supreme Court even observed that the moratorium on executions was encouraging “terrorists to carry out their activities without any fear of being executed after conviction”.
This rationale is patently false and misleading. Studies carried out the world over have shown that implementing the death penalty has no greater deterrent effect than lengthy imprisonment sentences on the levels of insurgent and terrorist violence or on the levels of casualties. They have shown that far from having a deterrent effect, the implementation of the death penalty is merely reactive to increasing instability and reinforces existing cycles of violence.
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Moreover, executing individuals whose guilt may be questionable — which is particularly true in Pakistan where weaknesses of the criminal justice system are well-documented — further compounds the sense of injustice and alienation among certain sectors of the population.
A dispassionate assessment of the death penalty inarguably shows that it is not — and never was — a “solution” to terrorism; this was only a myth sold to the people of Pakistan to appear “tough” on violent crimes. The same is true about the 21st Amendment.
Since January 2015, when the 21st Amendment was passed to empower military courts to try civilians for terrorism-related offences, military courts have convicted at least 157 people, of whom 153 people have been sentenced to death and at least four have been given life sentences. Twelve civilians convicted by military courts have been hanged after secret trials. An incredible 94 per cent of these convictions are based on highly questionable “admissions” of guilt by the suspects.
Putting civilians on trial before military courts is not only contrary to international standards, but has also come at a great cost to human rights and the independence of the judiciary. The promised “quick results”, however, are nowhere to be seen. This should not come as a surprise, as the very rationale behind military courts as a “solution” to terrorism was flawed and deceptive.
The premise of the 21st Amendment was the hastily constructed narrative that “civilian courts have failed”. Curiously, none of the advocates of military courts, whether in Parliament or in the media, presented any evidence to substantiate these claims or explain how military courts were a remedial measure.
It is true that anti-terrorism courts have a high acquittal rate, ranging from 80-90 per cent. But the reasons for this are far more complex than the half-truths presented before Parliament and on television screens that led to the enactment — and later celebration — of the 21st Amendment.
Low conviction rates in terrorism-related cases, as illustrated by the high profile cases of Malik Ishaq and Sufi Muhammad, can be better explained by lapses in investigation and prosecutorial efforts, such as delays in registering FIRs and lodging cases against suspects; insufficient collection of evidence; and presentation of inadmissible evidence.
The establishment of military courts does nothing to address these concerns. Secret military trials merely bypass regular criminal justice procedures and human rights protections that are necessary to ensure the fair administration of justice and impartial adjudication of responsibility. They leave us with a criminal justice system that continues to be institutionally flawed, and convictions that do not represent “justice”, only an illusion of revenge.
At the time the 21st Amendment was enacted, the government claimed that military courts would be a short-term, “exceptional” measure and the two-year period would be used to strengthen the ordinary criminal justice system to better equip regular courts to conduct terrorism-related trials. The 21st Amendment is set to lapse in less than a month. These promised changes, not surprisingly, are nowhere to be seen.
In May 2016, the National Assembly passed a bill to strengthen the criminal justice system and “root out the evil of terrorism with exemplary deterrence”. The bill, which is currently pending before the Senate, introduces vaguely framed offences to the Penal Code and enhances possible sentences for a number of crimes. These proposed amendments completely fail to respond to the failings of the criminal justice system that were used as the justification for establishing military courts to try terrorism-related cases.
When the 21st Amendment expires in less than a month Pakistan will be back to where it was two years ago. Judges and witnesses will continue to be vulnerable to security risks and issues of capacity and training of law enforcement agencies will continue to weaken the administration of justice and the rule of law.
The frustration with impunity for terrorism and other serious crimes in Pakistan is legitimate, but there are no “quick fixes” to a crisis caused by decades of neglect. Ensuring justice — as opposed to executing people in large numbers and convicting suspects without the fair and impartial adjudication of responsibility — will require major rethinking and reform of the criminal justice system.
It will require ensuring that human rights, including basic guarantees of the right to a fair trial, are at all times protected; learning from the successes and failures of other jurisdictions that face similar security threats; and drawing from the actual everyday experiences of judges, lawyers and investigators, not hasty and ill-conceived measures motivated by the desire for revenge at the cost of fundamental principles of fairness.
The government missed the opportunity to do so two years ago after the APS tragedy. It must not make the same mistakes again.